Preview
INDEX NO. 158327/2013
(FILED: NEW YORK COUNTY CLERK 0371672015 05:04 PM
NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/16/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
anne ee tne
KEVIN McGONIGAL,
Plaintiff,
-against-
Index No.; 158327/13
NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51"
STREET LLC, PLAZA CONSTRUCTION CORP. and
BARING INDUSTRIES, INC.,
Defendants
wane nee VERIFIED ANSWER TO
PLAZA CONSTRUCTION CORP. . AMENDED VERIFIED
COMPLAINT
Defendant/Third-Party Plaintiff
-against-
BARING INDUSTRIES, INC., Third-Party Index No.
§95146/14
Third-Party Defendant.
pene eee eee ene eee nen eee een ene enn
Defendant/third-party plaintiff, PLAZA CONSTRUCTION, LLC ff/k/a PLAZA
CONSTRUCTION CORP. by its attorneys, FABIANI COHEN & HALL, LLP, as and for a
verified answer to the plaintiff's amended verified complaint, sets forth, upon information and
belief, the following:
1 Denies knowledge or information sufficient to form a belief as to the truth of the
allegations contained in Paragraph Nos. “FIRST”, “SECOND”, “FOURTH”, “FIFTH”,
“SIXTH”, “NINTH”, “TENTH”, “ELEVENTH”, “THIRTEENTH”, “FOURTEENTH” and
“SEVENTEENTH” of the plaintiff's amended verified complaint.
2 Denies the allegations contained in Paragraph No. “THIRD” of the plaintiffs
amended verified complaint, except admits that on September 6, 2013, PLAZA
CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. was a domestic business
corporation duly organized and existing under and by virtue of the laws of the State of New
York,
3 Denies the allegations contained in Paragraph No. “SEVENTH” of the plaintiff's
amended verified complaint, except admits that some time prior to September 6, 2013, NYY
STEAK entered into a contract with PLAZA CONSTRUCTION, LLC f/k/a PLAZA
CONSTRUCTION CORP. to perform certain work at 7 West 51* Street, New York, New York
and beg leave to refer to all relevant documents, contracts and agreements for their terms and
conditions at the time of trial.
4. Denies the allegations contained in Paragraph No. “EIGHTH” of the plaintiff's
amended verified complaint, except admits that some time prior to September 6, 2013, NYY
STEAK entered into a contract with PLAZA CONSTRUCTION, LLC ff/k/a PLAZA
CONSTRUCTION CORP, to perform certain work at 7 West 51“ Street, New York, New York
and beg leave to refer to all relevant documents, contracts and agreements for their terms and
conditions at the time of trial,
5 Denies the allegations contained in Paragraph No. “TWELFTH” of the plaintiff's
amended verified complaint, except admits that some time prior to September 6, 2013, NYY
STEAK entered into a contract with PLAZA CONSTRUCTION, LLC ffk/a PLAZA
CONSTRUCTION CORP. to perform certain work at 7 West 51" Street, New York, New York
and beg leave to refer to all relevant documents, contracts and agreements for their terms and
conditions at the time of trial.
6. Denies the allegations contained in Paragraph No. “FIFTEENTH” of the
plaintiff's amended verified complaint, except admits that some time prior to September 6, 2013,
PLAZA CONSTRUCTION, LLC fik/a PLAZA CONSTRUCTION CORP. entered into a
£814239/1}
contract with BARING INDUSTRIES, INC. pursuant to which BARING INDUSTRIES, INC.
agreed to perform certain work at 7 West S1™ Street, New York, New York and beg leave to
refer to all relevant documents, contracts and agreements for their terms and conditions at the
time of trial.
7
Denies each and every allegation contained in Paragraph Nos. “SIXTEENTH”.
“NINTEENTH”, “TWENTIETH”, “TWENTY-FIRST” and “TWENTY-SECOND” of the
plaintiffs amended verified complaint.
8 Denies the allegations contained in Paragraph No. “EIGHTEENTH” of the
plaintiff's amended verified complaint and respectfully refers all questions of law to the
determination of the Trial Court.
AS AND FOR A FIRST AFFIRMATIVE DEFENSE
9 Upon information and belief, any damages sustained by the plaintiff herein were
not caused by any negligence or carelessness on the part of PLAZA CONSTRUCTION, LLC
ffk/a PLAZA CONSTRUCTION CORP., its servants, agents or employees, but were caused
solely by the negligence and carelessness of the plaintiff and that such conduct requires
diminution of any award, verdict or judgment that plaintiff may recover against PLAZA
CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP,
AS AND FOR A SECOND AFFIRMATIVE DEFENSE
10. Notwithstanding — that PLAZA CONSTRUCTION, LLC ff/k/a PLAZA
CONSTRUCTION CORP. has denied liability herein, in the event that liability is found, the
liability of PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. shall be
fifty percent or less of the total liability assigned to all persons liable and pursuant to CPLR
§1601 et seq., the ability of PLAZA CONSTRUCTION, LLC ffk/a PLAZA CONSTRUCTION
[81423971]
CORP. for non-economic loss shall not exceed their equitable share determined in accordance
with the relative culpability of each person causing or contributing to the total liability of non-
economic loss.
AS AND FOR A THIRD AFFIRMATIVE DEFENSE
I. That to the extent plaintiff recovers any damages for the cost of medical care,
dental care, custodial care or rehabilitation services, loss of earnings and/or other economic loss,
the amount of the award shall be reduced by the sum total of all collateral reimbursements, from
whatever source, whether it be insurance, social security payments, Workers' Compensation,
employee benefits or other such programs, in accordance with the provisions of the CPLR
§4545.
AS AND FOR A FOURTH AFFIRMATIVE DEFENSE
12. That all risks and alleged dangers connected with the situation at the time and
place mentioned in the amended verified complaint were open, obvious and apparent and were
known to and assumed by plaintiff herein.
AS AND FOR A FIFTH AFFIRMATIVE DEFENSE
13, That upon information and belief, the injuries allegedly sustained by plaintiff
were the result of the acts of independent contractors over whose work PLAZA
CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. exercised no direction or
control.
AS AND FOR A SIXTH AFFIRMATIVE DEFENSE
14. That upon information and belief, the injuries allegedly sustained by plaintiff
were the result of superseding and/or intervening acts of negligence by persons over whom
(814239/1]
PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. had neither control
nor the right of control.
AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE
15. The plaintiffs own negligence was the sole proximate cause of his injuries.
AS AND FOR A FIRST CROSS-CLAIM
AGAINST DEFENDANT/THIRD-PARTY DEFENDANT
BARING INDUSTRIES, INC.
(COMMON LAW INDEMNIFICATION)
15. That although the answering defendant/third-party plaintiff has denied the
allegations of wrongdoing asserted against it by the plaintiff, nevertheless, should said
defendant/third-party plaintiff be found liable to the plaintiff, such liability will have been the
result of the active and affirmative wrongdoing of defendant/third-party defendant BARING
INDUSTRIES, INC., while the wrongdoing of the answering defendant/third-party plaintiff will
have been passive and secondary.
16. By reason of the foregoing, the answering defendant/third-party plaintiff is
entitled to full indemnity from defendant/third-party defendant BARING INDUSTRIES, INC.
AS AND FOR A SECOND CROSS-CLAIM
AGAINST DEFENDANT/THIRD-PARTY DEFENDANT
BARING INDUSTRIES, INC.
(CONTRIBUTION)
17. That although the answering defendant/third-party plaintiff has denied the
allegations of wrongdoing asserted against it by the plaintiff, nevertheless, should said
defendant/third-party plaintiff be found liable to the plaintiff and should said defendant/third-
party plaintiff not be awarded full indemnity on the first cross-claim of this verified answer, then
the answering defendant/third-party defendant is entitled to an apportionment of fault against
(814239/1}
defendant/third-party defendant BARING INDUSTRIES, INC. in proportion to the relative
degrees of fault or wrongdoing among the parties to this action or as otherwise provided under
Articles 14 and 16 of the CPLR.
18. By reason of the foregoing, the answering defendant/third-party plaintiff is
entitled to contribution. or partial indemnity from the defendant/third-party defendant BARING
INDUSTRIES, INC. in accordance with the relative degrees of fault or wrongdoing of the parties
to this action or as otherwise provided under Articles 14 and 16 of the CPLR.
AS AND FOR A THIRD CROSS-CLAIM
AGAINST DEFENDANT/THIRD-PARTY DEFENDANT
BARING INDUSTRIES, INC
(CONTRACTUAL INDEMNIFICATION)
19, That an agreement was made by and between the answering defendant/third-party
plaintiff, on the one part, and defendant/third-party defendant BARING INDUSTRIES, INC., on
the other part, pursuant to which, inter alia, defendant/third-party defendant BARING
INDUSTRIES, INC undertook to indemnify, fully or partially, the answering defendant/third-
party plaintiff for loss or damage arising out of or in connection with the aforesaid agreement,
The answering defendant/third-party plaintiff begs leave to refer to the original of such
agreement for its terms and conditions.
20. By reason of the foregoing agreement, the answering defendant/third-party
plaintiff is entitled to cither complete indemnification or partial indemnity by contract from
defendant/third-party defendant BARING INDUSTRIES, INC. for any verdict, judgment or
settlement reached in this action against the answering defendant/third-party defendant, together
with costs, disbursements and attorneys’ fees.
{8)4239/11
AS AND FOR A FOURTH CROSS-CLAIM
AGAINST DEFENDANT/THIRD-PARTY DEFENDANT
BARING INDUSTRIES, INC
(BREACH OF CONTRACTUAL OBLIGATION
(LO PROCURE LIABILITY INSURANCE)
21. That an agreement was made by and between the answering defendant/third-party
plaintiff, on the one part, and defendant/third-party defendant BARING INDUSTRIES, INC., on
the other part, pursuant to which, inter alia, defendant/third-party defendant BARING
INDUSTRIES, INC. undertook to procure liability insurance for the benefit of the answering
defendant/third-party defendant for all claims arising out of or in connection with the work or
services performed by the answering defendant/third-party defendant under the aforesaid
agreement,
22. The answering defendant/third-party plaintiff has demanded that a liability insurer
undertake to defend and indemnify the answering defendant/third-party plaintiff in connection
with this action but, to date, no such liability insurer has done so.
23. Upon information and belief, by reason of the failure of any liability insurance
company to undertake the defense and indemnification of defendant/third-party plaintiff in
connection with this action, defendant/third-party defendant BARING INDUSTRIES, INC. has
breached its contractual obligation to the answering defendant/third-party plaintiff.
24. By reason of such breach, defendant/third-party defendant BARING
INDUSTRIES, INC. is obligated to indemnify fully the answering defendant/third-party plaintiff
for any verdict, judgment or settlement in this action together with costs, disbursements and
attorneys’ fees.
WHEREFORE, defendant/third-party plaintiff, PLAZA CONSTRUCTION,
LLC fik/a PLAZA CONSTRUCTION CORP. demands:
[814239/1}
1 Judgment dismissing the Amended Verified Complaint;
2. In the event that the Amended Verified Complaint is not dismissed, then full
indemnity with respect to the first and third cross-claims;
3 Full indemnity, together with costs, disbursements, and attorneys’ fees pursuant to
the fourth cross-claim;
4. In the event that full indemnity is not granted, then contribution pursuant to the
second cross-claim in accordance with degrees of wrongdoing;
5 Together with the costs and disbursements of this action.
Dated: New York, New York
March /é, 2015
Yours, etc.,
FABIANI COHEN & HALL, LLP
Attorneys for Defendant/third-party plaintiff
PLAZA CONSTRUCTION, LLC fik/a PLAZA
CONSTRUCTION CORP.
570 Lexington Avenue, 4th Floor
New York, New York 10022
Tel No.: (212) 644-4420
File No.: 731-37132
TO SACKS AND SACKS, LLP
Attorneys for Plaintiff
KEVIN McGONIGAL
150 Broadway ~ 4" Floor
New York, New York 10038
(212) 964-5570
JONES HIRSCH CONNORS MILLER & BULL, PC
Attorneys for Defendant
NYY STEAK MANHATTAN, LLC
One Battery Park PLAZA CONSTRUCTION CORP.
New York, New York 10004
212-527-1000
[81423979]
LAW OFFICES OF CHARLES J. SIEGEL
Attorneys for Defendant/third-party defendant
BARING INDUSTRIES, INC.
125 Broad Street — 7" Floor
New York, New York 10004
Attention: Nikolas E, Diamantis, Esq.
(814239/1]
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
ween nee penne ene eee
een en enn en een nnn
KEVIN McGONIGAL,
Plaintiff,
-against-
Index No.:; 158327/13
NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51*
STREET LLC, PLAZA CONSTRUCTION CORP. and
BARING INDUSTRIES, INC.,
Defendants
sewn pen e nee ene eee ennn nee nene ne ne CORPORATE
PLAZA CONSTRUCTION CORP., VERIFICATION
Defendant/Third-Party Plaintiff
-against-
Third-Party Index No.
BARING INDUSTRIES, INC., 595146/14
Third-Party Defendant.
ERIN DECANDIO, being duly sworn, deposes and says:
1 That deponent is Corporate Risk Manager/Contract Administrator of PLAZA
CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP., one of the corporations
named in the within action.
2 That deponent has read the foregoing Verified Answer to Amended verified
complaint, knows the contents thereof, and that the same are true to the deponent's own
knowledge, except as to the matters therein stated to be alleged upon information and belief, and
as to those matters deponent believes them to be true.
3 This verification is made by deponent because PLAZA CONSTRUCTION, LLC
f/k/a PLAZA CONSTRUCTION CORP. is a corporation with an office and place of business in
[814239/1}
the County of New York and deponent is the Corporate Risk Manager/Contract Administrator
thereof.
4 The grounds of deponent's belief as to all matters not stated upon deponent’s
knowledge are books, records, letters, investigative materials, documents, etc., maintained by the
corporation in its files.
DG.
Erin DeCandio
Sworn to before me this
tigt*day of March, 2015
avn a
Notary Public
sy ee Besse
KATHERINE JANE CHORZEPA
Qualified In Queens Count
Certified in New York Goun!
Commission Expires 01/24/2046)
[814239/1]
Preview
INDEX NO. 158327/2013 (FILED: NEW YORK COUNTY CLERK 0371672015 05:04 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 03/16/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK anne ee tne KEVIN McGONIGAL, Plaintiff, -against- Index No.; 158327/13 NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51" STREET LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., Defendants wane nee VERIFIED ANSWER TO PLAZA CONSTRUCTION CORP. . AMENDED VERIFIED COMPLAINT Defendant/Third-Party Plaintiff -against- BARING INDUSTRIES, INC., Third-Party Index No. §95146/14 Third-Party Defendant. pene eee eee ene eee nen eee een ene enn Defendant/third-party plaintiff, PLAZA CONSTRUCTION, LLC ff/k/a PLAZA CONSTRUCTION CORP. by its attorneys, FABIANI COHEN & HALL, LLP, as and for a verified answer to the plaintiff's amended verified complaint, sets forth, upon information and belief, the following: 1 Denies knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph Nos. “FIRST”, “SECOND”, “FOURTH”, “FIFTH”, “SIXTH”, “NINTH”, “TENTH”, “ELEVENTH”, “THIRTEENTH”, “FOURTEENTH” and “SEVENTEENTH” of the plaintiff's amended verified complaint. 2 Denies the allegations contained in Paragraph No. “THIRD” of the plaintiffs amended verified complaint, except admits that on September 6, 2013, PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. was a domestic business corporation duly organized and existing under and by virtue of the laws of the State of New York, 3 Denies the allegations contained in Paragraph No. “SEVENTH” of the plaintiff's amended verified complaint, except admits that some time prior to September 6, 2013, NYY STEAK entered into a contract with PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. to perform certain work at 7 West 51* Street, New York, New York and beg leave to refer to all relevant documents, contracts and agreements for their terms and conditions at the time of trial. 4. Denies the allegations contained in Paragraph No. “EIGHTH” of the plaintiff's amended verified complaint, except admits that some time prior to September 6, 2013, NYY STEAK entered into a contract with PLAZA CONSTRUCTION, LLC ff/k/a PLAZA CONSTRUCTION CORP, to perform certain work at 7 West 51“ Street, New York, New York and beg leave to refer to all relevant documents, contracts and agreements for their terms and conditions at the time of trial, 5 Denies the allegations contained in Paragraph No. “TWELFTH” of the plaintiff's amended verified complaint, except admits that some time prior to September 6, 2013, NYY STEAK entered into a contract with PLAZA CONSTRUCTION, LLC ffk/a PLAZA CONSTRUCTION CORP. to perform certain work at 7 West 51" Street, New York, New York and beg leave to refer to all relevant documents, contracts and agreements for their terms and conditions at the time of trial. 6. Denies the allegations contained in Paragraph No. “FIFTEENTH” of the plaintiff's amended verified complaint, except admits that some time prior to September 6, 2013, PLAZA CONSTRUCTION, LLC fik/a PLAZA CONSTRUCTION CORP. entered into a £814239/1} contract with BARING INDUSTRIES, INC. pursuant to which BARING INDUSTRIES, INC. agreed to perform certain work at 7 West S1™ Street, New York, New York and beg leave to refer to all relevant documents, contracts and agreements for their terms and conditions at the time of trial. 7 Denies each and every allegation contained in Paragraph Nos. “SIXTEENTH”. “NINTEENTH”, “TWENTIETH”, “TWENTY-FIRST” and “TWENTY-SECOND” of the plaintiffs amended verified complaint. 8 Denies the allegations contained in Paragraph No. “EIGHTEENTH” of the plaintiff's amended verified complaint and respectfully refers all questions of law to the determination of the Trial Court. AS AND FOR A FIRST AFFIRMATIVE DEFENSE 9 Upon information and belief, any damages sustained by the plaintiff herein were not caused by any negligence or carelessness on the part of PLAZA CONSTRUCTION, LLC ffk/a PLAZA CONSTRUCTION CORP., its servants, agents or employees, but were caused solely by the negligence and carelessness of the plaintiff and that such conduct requires diminution of any award, verdict or judgment that plaintiff may recover against PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP, AS AND FOR A SECOND AFFIRMATIVE DEFENSE 10. Notwithstanding — that PLAZA CONSTRUCTION, LLC ff/k/a PLAZA CONSTRUCTION CORP. has denied liability herein, in the event that liability is found, the liability of PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. shall be fifty percent or less of the total liability assigned to all persons liable and pursuant to CPLR §1601 et seq., the ability of PLAZA CONSTRUCTION, LLC ffk/a PLAZA CONSTRUCTION [81423971] CORP. for non-economic loss shall not exceed their equitable share determined in accordance with the relative culpability of each person causing or contributing to the total liability of non- economic loss. AS AND FOR A THIRD AFFIRMATIVE DEFENSE I. That to the extent plaintiff recovers any damages for the cost of medical care, dental care, custodial care or rehabilitation services, loss of earnings and/or other economic loss, the amount of the award shall be reduced by the sum total of all collateral reimbursements, from whatever source, whether it be insurance, social security payments, Workers' Compensation, employee benefits or other such programs, in accordance with the provisions of the CPLR §4545. AS AND FOR A FOURTH AFFIRMATIVE DEFENSE 12. That all risks and alleged dangers connected with the situation at the time and place mentioned in the amended verified complaint were open, obvious and apparent and were known to and assumed by plaintiff herein. AS AND FOR A FIFTH AFFIRMATIVE DEFENSE 13, That upon information and belief, the injuries allegedly sustained by plaintiff were the result of the acts of independent contractors over whose work PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. exercised no direction or control. AS AND FOR A SIXTH AFFIRMATIVE DEFENSE 14. That upon information and belief, the injuries allegedly sustained by plaintiff were the result of superseding and/or intervening acts of negligence by persons over whom (814239/1] PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. had neither control nor the right of control. AS AND FOR A SEVENTH AFFIRMATIVE DEFENSE 15. The plaintiffs own negligence was the sole proximate cause of his injuries. AS AND FOR A FIRST CROSS-CLAIM AGAINST DEFENDANT/THIRD-PARTY DEFENDANT BARING INDUSTRIES, INC. (COMMON LAW INDEMNIFICATION) 15. That although the answering defendant/third-party plaintiff has denied the allegations of wrongdoing asserted against it by the plaintiff, nevertheless, should said defendant/third-party plaintiff be found liable to the plaintiff, such liability will have been the result of the active and affirmative wrongdoing of defendant/third-party defendant BARING INDUSTRIES, INC., while the wrongdoing of the answering defendant/third-party plaintiff will have been passive and secondary. 16. By reason of the foregoing, the answering defendant/third-party plaintiff is entitled to full indemnity from defendant/third-party defendant BARING INDUSTRIES, INC. AS AND FOR A SECOND CROSS-CLAIM AGAINST DEFENDANT/THIRD-PARTY DEFENDANT BARING INDUSTRIES, INC. (CONTRIBUTION) 17. That although the answering defendant/third-party plaintiff has denied the allegations of wrongdoing asserted against it by the plaintiff, nevertheless, should said defendant/third-party plaintiff be found liable to the plaintiff and should said defendant/third- party plaintiff not be awarded full indemnity on the first cross-claim of this verified answer, then the answering defendant/third-party defendant is entitled to an apportionment of fault against (814239/1} defendant/third-party defendant BARING INDUSTRIES, INC. in proportion to the relative degrees of fault or wrongdoing among the parties to this action or as otherwise provided under Articles 14 and 16 of the CPLR. 18. By reason of the foregoing, the answering defendant/third-party plaintiff is entitled to contribution. or partial indemnity from the defendant/third-party defendant BARING INDUSTRIES, INC. in accordance with the relative degrees of fault or wrongdoing of the parties to this action or as otherwise provided under Articles 14 and 16 of the CPLR. AS AND FOR A THIRD CROSS-CLAIM AGAINST DEFENDANT/THIRD-PARTY DEFENDANT BARING INDUSTRIES, INC (CONTRACTUAL INDEMNIFICATION) 19, That an agreement was made by and between the answering defendant/third-party plaintiff, on the one part, and defendant/third-party defendant BARING INDUSTRIES, INC., on the other part, pursuant to which, inter alia, defendant/third-party defendant BARING INDUSTRIES, INC undertook to indemnify, fully or partially, the answering defendant/third- party plaintiff for loss or damage arising out of or in connection with the aforesaid agreement, The answering defendant/third-party plaintiff begs leave to refer to the original of such agreement for its terms and conditions. 20. By reason of the foregoing agreement, the answering defendant/third-party plaintiff is entitled to cither complete indemnification or partial indemnity by contract from defendant/third-party defendant BARING INDUSTRIES, INC. for any verdict, judgment or settlement reached in this action against the answering defendant/third-party defendant, together with costs, disbursements and attorneys’ fees. {8)4239/11 AS AND FOR A FOURTH CROSS-CLAIM AGAINST DEFENDANT/THIRD-PARTY DEFENDANT BARING INDUSTRIES, INC (BREACH OF CONTRACTUAL OBLIGATION (LO PROCURE LIABILITY INSURANCE) 21. That an agreement was made by and between the answering defendant/third-party plaintiff, on the one part, and defendant/third-party defendant BARING INDUSTRIES, INC., on the other part, pursuant to which, inter alia, defendant/third-party defendant BARING INDUSTRIES, INC. undertook to procure liability insurance for the benefit of the answering defendant/third-party defendant for all claims arising out of or in connection with the work or services performed by the answering defendant/third-party defendant under the aforesaid agreement, 22. The answering defendant/third-party plaintiff has demanded that a liability insurer undertake to defend and indemnify the answering defendant/third-party plaintiff in connection with this action but, to date, no such liability insurer has done so. 23. Upon information and belief, by reason of the failure of any liability insurance company to undertake the defense and indemnification of defendant/third-party plaintiff in connection with this action, defendant/third-party defendant BARING INDUSTRIES, INC. has breached its contractual obligation to the answering defendant/third-party plaintiff. 24. By reason of such breach, defendant/third-party defendant BARING INDUSTRIES, INC. is obligated to indemnify fully the answering defendant/third-party plaintiff for any verdict, judgment or settlement in this action together with costs, disbursements and attorneys’ fees. WHEREFORE, defendant/third-party plaintiff, PLAZA CONSTRUCTION, LLC fik/a PLAZA CONSTRUCTION CORP. demands: [814239/1} 1 Judgment dismissing the Amended Verified Complaint; 2. In the event that the Amended Verified Complaint is not dismissed, then full indemnity with respect to the first and third cross-claims; 3 Full indemnity, together with costs, disbursements, and attorneys’ fees pursuant to the fourth cross-claim; 4. In the event that full indemnity is not granted, then contribution pursuant to the second cross-claim in accordance with degrees of wrongdoing; 5 Together with the costs and disbursements of this action. Dated: New York, New York March /é, 2015 Yours, etc., FABIANI COHEN & HALL, LLP Attorneys for Defendant/third-party plaintiff PLAZA CONSTRUCTION, LLC fik/a PLAZA CONSTRUCTION CORP. 570 Lexington Avenue, 4th Floor New York, New York 10022 Tel No.: (212) 644-4420 File No.: 731-37132 TO SACKS AND SACKS, LLP Attorneys for Plaintiff KEVIN McGONIGAL 150 Broadway ~ 4" Floor New York, New York 10038 (212) 964-5570 JONES HIRSCH CONNORS MILLER & BULL, PC Attorneys for Defendant NYY STEAK MANHATTAN, LLC One Battery Park PLAZA CONSTRUCTION CORP. New York, New York 10004 212-527-1000 [81423979] LAW OFFICES OF CHARLES J. SIEGEL Attorneys for Defendant/third-party defendant BARING INDUSTRIES, INC. 125 Broad Street — 7" Floor New York, New York 10004 Attention: Nikolas E, Diamantis, Esq. (814239/1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ween nee penne ene eee een en enn en een nnn KEVIN McGONIGAL, Plaintiff, -against- Index No.:; 158327/13 NYY STEAK MANHATTAN, LLC, PREF 7 WEST 51* STREET LLC, PLAZA CONSTRUCTION CORP. and BARING INDUSTRIES, INC., Defendants sewn pen e nee ene eee ennn nee nene ne ne CORPORATE PLAZA CONSTRUCTION CORP., VERIFICATION Defendant/Third-Party Plaintiff -against- Third-Party Index No. BARING INDUSTRIES, INC., 595146/14 Third-Party Defendant. ERIN DECANDIO, being duly sworn, deposes and says: 1 That deponent is Corporate Risk Manager/Contract Administrator of PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP., one of the corporations named in the within action. 2 That deponent has read the foregoing Verified Answer to Amended verified complaint, knows the contents thereof, and that the same are true to the deponent's own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters deponent believes them to be true. 3 This verification is made by deponent because PLAZA CONSTRUCTION, LLC f/k/a PLAZA CONSTRUCTION CORP. is a corporation with an office and place of business in [814239/1} the County of New York and deponent is the Corporate Risk Manager/Contract Administrator thereof. 4 The grounds of deponent's belief as to all matters not stated upon deponent’s knowledge are books, records, letters, investigative materials, documents, etc., maintained by the corporation in its files. DG. Erin DeCandio Sworn to before me this tigt*day of March, 2015 avn a Notary Public sy ee Besse KATHERINE JANE CHORZEPA Qualified In Queens Count Certified in New York Goun! Commission Expires 01/24/2046) [814239/1]